[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 5289 Introduced in Senate (IS)]

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117th CONGRESS
  2d Session
                                S. 5289

  To create a moratorium on the government use of facial recognition 
technology until a Commission recommends the appropriate guidelines and 
          limitation for use of facial recognition technology.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           December 15, 2022

Mr. Merkley (for himself and Mr. Booker) introduced the following bill; 
which was read twice and referred to the Committee on Homeland Security 
                        and Governmental Affairs

_______________________________________________________________________

                                 A BILL


 
  To create a moratorium on the government use of facial recognition 
technology until a Commission recommends the appropriate guidelines and 
          limitation for use of facial recognition technology.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Ethical Use of Facial Recognition 
Act''.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) Facial recognition is a technology that is increasingly 
        being used and marketed to law enforcement agencies across the 
        United States without appropriate debate or consideration of 
        its impacts.
            (2) Facial recognition has been shown to disproportionately 
        impact communities of color, activists, immigrants, and other 
        groups that are often already unjustly targeted.
            (3) Facial recognition has a history of being inaccurate, 
        particularly for women, young people, African Americans, and 
        other ethnic groups.
            (4) There is evidence that facial recognition has been used 
        at protests and rallies, which could chill speech.
            (5) It is critical that facial recognition not be used to 
        suppress First Amendment related activities, violate privacy, 
        or otherwise adversely impact individuals' civil rights and 
        civil liberties.

SEC. 3. DEFINITIONS.

     In this Act:
            (1) Commission.--The term ``Commission'' means the 
        congressional commission established under section 6.
            (2) Covered government official.--The term ``covered 
        government official'' means any officer, employee, or 
        contractor of a Federal agency.
            (3) Facial recognition technology.--The term ``facial 
        recognition technology'' means the automated or semi-automated 
        process that assists in identifying or verifying an individual 
        based on the characteristics of an individual's face.
            (4) Federal agency.--The term ``Federal agency'' has the 
        meaning given the term ``agency'' in section 551 of title 5, 
        United States Code.
            (5) Implementation bill.--The term ``implementation bill'' 
        means a bill--
                    (A) consisting of the legislative language prepared 
                under section 6(e)(1)(A); and
                    (B) introduced under section 6(e)(1)(B).

SEC. 4. LIMITS ON USE OF FACIAL RECOGNITION TECHNOLOGY.

    A covered government official may not set up any camera to be used 
in connection with facial recognition technology, access or use 
information obtained from facial recognition technology, or import 
facial recognition technology to identify an individual in the United 
States without a warrant until the date on which Congress enacts 
legislation implementing the guidelines for use of facial recognition 
technology established by the Commission under section 6.

SEC. 5. ENFORCEMENT.

    (a) Civil Action.--Any person aggrieved by a violation of section 4 
by a covered government official may bring a civil action for 
injunctive or declaratory relief in the appropriate district court of 
the United States.
    (b) Limitation on Federal Grants.--Notwithstanding any other 
provision of law, no Federal funds may be used by a State or unit of 
local government to invest in facial recognition software, purchase 
facial recognition technology services, or acquire images for use in 
facial recognition technology systems.

SEC. 6. COMMISSION.

    (a) In General.--There is established a congressional commission to 
consider and create guidelines for the use of facial recognition 
technology in the United States.
    (b) Membership.--
            (1) In general.--The Commission shall be composed of 13 
        members, of whom--
                    (A) 1 member shall be appointed by the President, 
                and such member shall serve as the Chairperson of the 
                Commission;
                    (B) 3 members shall be appointed by the majority 
                leader of the Senate;
                    (C) 3 members shall be appointed by the minority 
                leader of the Senate;
                    (D) 3 members shall be appointed by the Speaker of 
                the House of Representatives; and
                    (E) 3 members shall be appointed by the minority 
                leader of the House of Representatives.
            (2) Expertise of members.--
                    (A) In general.--Members appointed under paragraph 
                (1) shall represent each of the following groups:
                            (i) Law enforcement and immigration 
                        enforcement officials.
                            (ii) Privacy and technology experts.
                            (iii) Communities most impacted negatively 
                        by the use of facial recognition technology.
                    (B) Requirement.--Not fewer than 7 members of the 
                Commission shall be representatives of the group 
                described in subparagraph (A)(iii).
    (c) Duties.--The Commission shall--
            (1) consider and create guidelines and limitations for the 
        use of facial recognition technology in the United States to 
        ensure that the use of such technology does not--
                    (A) create a constant state of surveillance of 
                individuals in the United States that does not allow 
                for a level of reasonable anonymity;
                    (B) produce biased or inaccurate results;
                    (C) disproportionately impact a racial, ethnic, 
                national origin group, or other protected class of 
                individuals;
                    (D) impinge on the privacy, free speech, or due 
                process rights of individuals in the United States; or
                    (E) limit the ability of law enforcement officers 
                to track down missing and exploited children and 
                trafficked individuals; and
            (2) consider and recommend the appropriate rules for 
        governing the use and limitations on both government and 
        commercial use of facial recognition technology, including--
                    (A) whether there are appropriate uses for facial 
                recognition technology without a warrant by government 
                officials in a private or public space;
                    (B) what are the appropriate uses and limitations 
                for commercial use, including what rights individuals 
                should have relating to the data produced and the use 
                of their likeness in facial recognition technology;
                    (C) in what circumstances, if any, government 
                officials should be permitted to use facial recognition 
                without a warrant;
                    (D) what rules should govern how and where images 
                may be acquired through facial recognition technology, 
                taking into account individuals' reasonable 
                expectations of privacy or anonymity;
                    (E) in what situations individuals should be able 
                to opt out or required to opt in to the use of facial 
                recognition technology;
                    (F) what safeguards need to be put in place to 
                prevent abuse of facial recognition technology;
                    (G) what are appropriate remedies when facial 
                recognition technology is misused; and
                    (H) what rights individuals have relating to the 
                data produced and the use of their likeness in facial 
                recognition technology.
    (d) Report.--Not later than 18 months after the date of enactment 
of this Act, the Commission shall submit a report to Congress that 
contains--
            (1) the guidelines required to be created under subsection 
        (c);
            (2) recommendations for implementation of such guidelines; 
        and
            (3) any minority views or recommendations of the 
        Commission.
    (e) Implementation.--
            (1) Introduction.--Not later than 90 days after the date on 
        which the report required under subsection (d) is submitted to 
        Congress--
                    (A) Congress shall prepare legislative language to 
                implement the recommendations included in such report; 
                and
                    (B) the legislative language prepared under 
                subparagraph (A)--
                            (i) shall be introduced in the Senate (by 
                        request) not later than the third day on which 
                        the Senate is in session after the date on 
                        which the Commission approves the legislative 
                        language by the majority leader of the Senate 
                        or by a Member of the Senate designated by the 
                        majority leader of the Senate; and
                            (ii) shall be introduced in the House of 
                        Representatives (by request) not later than the 
                        third day on which the House of Representatives 
                        is in session after the date on which the 
                        Commission approves the legislative language by 
                        the majority leader of the House of 
                        Representatives or by a Member of the House of 
                        Representatives designated by the majority 
                        leader of the House of Representatives.
            (2) Consideration in the house of representatives.--
                    (A) Referral and reporting.--Any committee of the 
                House of Representatives to which an implementation 
                bill is referred shall report it to the House not later 
                than 3 days after the date on which the implementation 
                bill is introduced in the House of Representatives. If 
                a committee fails to report an implementation bill 
                within that period, it shall be in order to move that 
                the House of Representatives discharge the committee 
                from further consideration of the bill. Such a motion 
                shall not be in order after the last committee 
                authorized to consider the bill reports it to the House 
                of Representatives or after the House of 
                Representatives has disposed of a motion to discharge 
                the bill. The previous question shall be considered as 
                ordered on the motion to its adoption without 
                intervening motion except 20 minutes of debate equally 
                divided and controlled by the proponent and an 
                opponent. If such a motion is adopted, the House of 
                Representatives shall proceed immediately to consider 
                the implementation bill in accordance with 
                subparagraphs (B) and (C). A motion to reconsider the 
                vote by which the motion is disposed of shall not be in 
                order.
                    (B) Proceeding to consideration.--After the last 
                committee authorized to consider an implementation bill 
                reports it to the House of Representatives or has been 
                discharged from its consideration, it shall be in order 
                to move to proceed to consider the implementation bill 
                in the House of Representatives. Such a motion shall 
                not be in order after the House of Representatives has 
                disposed of a motion to proceed with respect to the 
                implementation bill. The previous question shall be 
                considered as ordered on the motion to its adoption 
                without intervening motion. A motion to reconsider the 
                vote by which the motion is disposed of shall not be in 
                order.
                    (C) Consideration.--An implementation bill shall be 
                considered as read. All points of order against an 
                implementation bill and against its consideration are 
                waived. The previous question shall be considered as 
                ordered on an implementation bill to its passage 
                without intervening motion except 2 hours of debate 
                equally divided and controlled by the proponent and an 
                opponent and one motion to limit debate on an 
                implementation bill. A motion to reconsider the vote on 
                passage of an implementation bill shall not be in 
                order.
            (3) Expedited procedure in the senate.--
                    (A) Committee consideration.--An implementation 
                bill introduced in the Senate under paragraph (1) shall 
                be jointly referred to the committee or committees of 
                jurisdiction, which committees shall report the bill 
                and with a favorable recommendation, an unfavorable 
                recommendation, or without recommendation not later 
                than 3 days after the date on which the implementation 
                bill is introduced. If any committee fails to report an 
                implementation bill within that period, that committee 
                shall be automatically discharged from consideration of 
                the bill, and the implementation bill shall be placed 
                on the appropriate calendar.
                    (B) Motion to proceed.--Notwithstanding rule XXII 
                of the Standing Rules of the Senate, it is in order, 
                not later than 3 days of session after the date on 
                which an implementation bill is reported or discharged 
                from all committees to which it was referred, for the 
                majority leader of the Senate or the majority leader's 
                designee to move to proceed to the consideration of the 
                implementation bill. It shall also be in order for any 
                Member of the Senate to move to proceed to the 
                consideration of the implementation bill at any time 
                after the conclusion of such 3-day period. A motion to 
                proceed is in order even though a previous motion to 
                the same effect has been disagreed to. All points of 
                order against the motion to proceed to an 
                implementation bill are waived. The motion to proceed 
                is not debatable. The motion is not subject to a motion 
                to postpone. A motion to reconsider the vote by which 
                the motion is agreed to or disagreed to shall not be in 
                order. If a motion to proceed to the consideration of 
                an implementation bill is agreed to, the implementation 
                bill shall remain the unfinished business until 
                disposed of.
                    (C) Consideration.--All points of order against an 
                implementation bill and against consideration of the 
                implementation bill are waived. Consideration of an 
                implementation bill, including amendments thereto, and 
                debatable motions and appeals in connection therewith 
                shall not exceed a total of 30 hours which shall be 
                divided equally between the majority and minority 
                leaders or their designees. A motion further to limit 
                debate on an implementation bill is in order, shall 
                require an affirmative vote of a majority of the 
                Members duly chosen and sworn, and is not debatable. 
                Any debatable motion or appeal is debatable for not to 
                exceed 1 hour, to be divided equally between those 
                favoring and those opposing the motion or appeal. All 
                time used for consideration of an implementation bill, 
                including time used for quorum calls and voting, shall 
                be counted against the total 30 hours of consideration.
                    (D) Limitations on consideration.--A motion to 
                postpone, or a motion to recommit the implementation 
                bill or a motion to proceed to the consideration of 
                other business is not in order.
                    (E) Rulings of the chair on procedure.--Appeals 
                from the decisions of the Chair relating to the 
                application of the rules of the Senate, as the case may 
                be, to the procedure relating to an implementation bill 
                shall be decided without debate.
            (4) Consideration by the other house.--
                    (A) In general.--If, before passing an 
                implementation bill, one House receives from the other 
                the implementation bill--
                            (i) the implementation bill of the other 
                        House shall be referred to a committee; and
                            (ii) the procedure in the receiving House 
                        shall be the same as if no implementation bill 
                        had been received from the other House.
            (5) Rules to coordinate action with other house.--
                    (A) Treatment of implementation bill of other 
                house.--If the Senate fails to introduce or consider an 
                implementation bill under this section, the 
                implementation bill of the House of Representatives 
                shall be entitled to expedited floor procedures under 
                this section.
                    (B) Treatment of companion measures in the 
                senate.--If following passage of an implementation bill 
                in the Senate, the Senate then receives the 
                implementation bill from the House of Representatives, 
                the House-passed implementation bill shall not be 
                debatable. The vote on passage of the implementation 
                bill in the Senate shall be considered to be the vote 
                on passage of the implementation bill received from the 
                House of Representatives.
            (6) Vetoes.--If the President vetoes an implementation 
        bill, debate on a veto message in the Senate under this section 
        shall be 1 hour equally divided between the majority and 
        minority leaders or their designees.
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